SZEJK v Minister for Immigration

[2005] FMCA 1259

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEJK v MINISTER FOR IMMIGRATION [2005] FMCA 1259

MIGRATION – Refugee – religious belief – country information – relevant material – question of law.

Migration Act 1958, ss.430(1)(d), 424A , 65, 36(2)

Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264
Re: The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1
SAAPv Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679
SZDQL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 769

Applicant: SZEJK

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 2794 of 2004

Judgment of: Nicholls FM

Hearing date: 1 September 2005

Date of Last Submission: 31 August 2005

Delivered at: Sydney

Delivered on: 5 September 2005

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr. J. Smith

Solicitors for the Respondent: Phillips Fox

ORDERS

1. The application is dismissed.

2. The applicant to pay the respondent’s costs set in the amount of $4000 pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2794 of 2004

SZEJK

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application filed in this Court on 10 September 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 23 July 2004 and handed down on 17 August 2004 to affirm the decision of a delegate of the respondent Minister made on

   
   

   27 February 2004 to refuse a protection visa to the applicant. The Tribunal is joined as the second respondent in this matter.

2. The applicant is a national of the Peoples Republic of China who arrived in Australia on 30 January 2004 and applied for a protection visa on 18 February 2004. He claimed to fear persecution in China for reason of his Christian religion and because of his involvement in a group which smuggled Bibles illegally into the PRC. The applicant’s claims which were before the Tribunal were set out in his protection visa application to the first respondent's Department at Court Book 1 to CB 23 and in particular in an attached statutory declaration at CB 24 to CB 28, in his application for review to the Tribunal at CB 50 to CB 53 and in an attached submission at CB 54 to CB 59. The Tribunal also invited the applicant to a hearing before it which he attended on 1 June 2004, and the Tribunal's account of the evidence provided by the applicant is contained in its decision record at CB 82 to CB 84.6.

3. As set out in its “Findings and Reasons” the Tribunal found:

   1)In relation to the identity of the applicant, that the applicant's name is that contained in the passport on which he travelled to Australia, and that he was known by that name in China. (CB 87.6)  

   2)In relation to the applicant’s involvement with the Christian religion, the Tribunal was not satisfied as to the credibility of the applicant's claims that he is a committed and practising Christian who had risked imprisonment for his religious beliefs. The Tribunal found:

   a)That while the applicant was able to demonstrate some knowledge of the basic facts of Christianity, his evident lack of familiarity with basic elements of the Bible led it to not be satisfied that he was a person who is knowledgeable about the Bible, and that he was not a member of the Bible study group as he had claimed. (CB 87.9)

   b)That the explanation that the applicant provided for his lack of knowledge, being that the Chinese government imposed restrictions, did not satisfy the Tribunal as being sufficient to explain his lack of knowledge of the Bible. (CB 88.2)

   c)That independent country information available to it indicated that religious activities are generally tolerated even if they are “unregistered” in certain circumstances, and it was not satisfied that the applicant was arrested during a raid on a Bible study group as he claims. (CB 88.3)

   d)It also preferred independent country information which indicated that in practice the PRC authorities do not target small-scale activities such as home-based Bible study groups to which the applicant claimed he belonged in 2005. (CB 88.4)

   e)Also noted that the applicant’s claimed arrest by the authorities in September 2002 could not have been connected with any involvement by him in Bible smuggling since by his own account he only began setting up a Bible smuggling network in January 2003. (CB 88.4)

   f)It's doubts about the credibility of these aspects of the applicant's claims were further strengthened by his claims to have continued his Christian religious worship in Australia. The applicant told the Tribunal at the hearing before it that he attended a Christian Church and the Tribunal sought written confirmation from the pastor of the Church of the applicant's attendance, given that the applicant was unable to provide the name, denomination or location of the Church to it at the hearing. Despite ample opportunity, and the involvement of his migration adviser, the applicant did not provide any evidence to the Tribunal as he had indicated that he would do. (CB 88.6)

   g)Given the lack of satisfaction with the credibility of the applicant's account of his involvement in the Christian religion, the Tribunal was also not satisfied that he had provided a truthful account of his involvement in setting up a Bible smuggling network for which he also provided no supporting evidence. (CB 88.8)

   3)In relation to specific harm claimed to have been suffered by the applicant, the Tribunal said that it was not satisfied that the applicant was ever arrested during a raid on a home-based Bible study group, nor that he was ever involved in smuggling or distributing Bibles, nor that he was forced to hide in Guangzhou waiting for his visa in January 2004. (CB 88.9)

   On the basis of all of the evidence before the Tribunal, it was not satisfied as to the credibility of the applicant’s claims to being involved in the Christian religion, or in the smuggling and distribution of Bibles in China, and on this basis the Tribunal concluded that the applicant did not have a well founded fear of persecution if he were to return to China and was therefore not a person to whom Australia owed protection obligations under the Convention.

4. The application to this Court complains that the applicant is a Christian, and he is unable to perform his religious practice in public in his home country for fear of persecution by the government authorities. The applicant states as the grounds of his application:

   “1. the member of the Tribunal only referred to the country information unfavourable for the protection visa applicant

   2. the member of the Tribunal embraced group information not applicable for individual applicant

   3. the member of the Tribunal identified the wrong questions and ignore the relevant materials and relied on irrelevant material

   4.the member of the Tribunal acted in a way that affects the exercise of power by making a error of law

   5. the member of the Tribunal determined questions of law and not in accordance with the law.”

   No particulars are provided and I note that when the applicant attended at the first Court date in this matter on 29 September 2004, where the applicant was assisted by an interpreter in the Mandarin language, he signed Short Minutes of Order, which subsequently by consent, became orders of the Court that required amongst other things that he file and serve an amended application giving complete particulars of each ground of review being relied upon by 22 December 2004. To date no amended application giving any such particulars has been filed.

5. The applicant was unrepresented at the hearing before me. He appeared with the assistance of an interpreter in the Mandarin language. He said that he read the Tribunal’s decision, and did not think it had made a mistake. But that in any event he did not want to go back to China because he would be persecuted.

6. The applicant's first complaint as stated in his application is that the Tribunal only referred to country information that was unfavourable to him. On the material before me, it is clear the Tribunal took into account all the information provided by the applicant including the evidence and information provided by the applicant at the hearing before the Tribunal. The Tribunal's decision record is clear and comprehensive in this regard both in setting out the claims and in dealing with them. The applicant has not pointed to any information which he put to the Tribunal, which was not considered by the Tribunal, nor is any such information or claim evident on the material before me. Specifically, in relation to country information unfavourable to the applicant, it is of course a matter of the Tribunal as to how much weight it attributes to one piece of evidence as against another, and it is clear that the Tribunal did rely on independent country information which was adverse to the applicant's claims. But there is nothing before me to show that it was not entitled to do so. The Tribunal's reference to some of this information in its decision is, as Mr. Smith for the respondents submits, revealing that the Tribunal was fulfilling its obligation under s.430(1)(d) of the Migration Act to refer to the evidence upon which it’s material findings of fact were based. The Tribunal's record of the hearing with the applicant clearly shows that matters adverse to the applicant's claims were put to the applicant. In particular at CB 82.9 the Tribunal noted independent country information which indicated that unregistered Churches are generally not subject to registration requirements as long as they remain small and unobtrusive, at CB 83.5 that there was independent country information that indicated that it was possible to buy locally printed Bibles legally in China, and at CB 83.7 it noted that there had not been reports of people being arrested for Bible smuggling in China since May 2001. While this complaint does not appear to assert any statutory failure to put adverse information to the applicant pursuant to s.424A(1) of the Migration Act, the relevant information relied on by the Tribunal in relation to the applicant’s claims relating to his involvement with the Christian religion and to harm suffered as a result would fall within the exception as set out in s.424A(3)(a) from the need to provide this information to the applicant pursuant to s.424A(1): Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264. This complaint cannot be made out.

7. The applicant’s second stated complaint is that the Tribunal “embraced group information not applicable for an individual applicant”. I saw this claim as a complaint that the Tribunal used general country information and relied on this in making its decision, and that this was not relevant information in looking at the individual circumstances of the applicant. The task for the Tribunal is to be satisfied, or otherwise, that an applicant is a person to whom Australia has protection obligations under the Refugees Convention. Section 65 of the Act establishes that the decision maker is required to reach a level of satisfaction before a visa can be granted, and a relevant criterion for the grant of a protection visa is the matter raised in s.36(2) of the Act, which amongst other requirements, is that the applicant meets the definition of refugee as set out in Article 1A(2) of the Refugees Convention. In reaching its ultimate conclusion, the Tribunal needs to look at the real chance of a risk of persecution if the applicant were to return to the country of origin. While looking at the individual claims of each applicant, and claims that may arise from circumstances put forward by an applicant, it is also relevant for a Tribunal to ask what the attitude of the authorities in that country is to people in similar circumstances to the applicant in determining the real risk of persecution to that applicant. In the case before me the Tribunal looked at each of the applicant's claims and to some extent looked to general country information for the purposes of assisting it in concluding on the issue of the real risk of harm of persecution if the applicant were to return to China. In this sense, the independent country information relied on by the Tribunal is, as Mr. Smith for the respondent submits, probative of the question that the Tribunal needs to address. I can see no jurisdictional error in the Tribunal considering that material in the circumstances of the case before me.

8. The applicant also complains that the Tribunal identified the wrong questions, ignored relevant materials, and relied on irrelevant materials. The applicant was unable to provide any particularity whatsoever to this claim. In any event, I note that the Tribunal correctly addressed the proper definition of “refugee” at CB 78 to CB 79 and I cannot see in the material before me that it misunderstood or misapplied this definition. The applicant's claims were rejected by the Tribunal because it was not satisfied as to the credibility of some of the key elements of his claims. The findings on credibility are, along with other findings of fact, a matter for the decision maker: McHugh J. in Re: The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1. On the material before me I cannot see that the Tribunal identified any wrong questions or ignored relevant materials or relied on irrelevant materials. Relevantly, I also note that the applicant was, throughout the process, represented by a registered migration agent, had opportunity to make written claims to the Tribunal, which he did, and appeared before the Tribunal and gave evidence and indeed was requested by the Tribunal to provide corroborative evidence and given every opportunity to do so, and did not do so. In all the circumstances this ground cannot be made out.

9. The applicant's fourth ground is that the Tribunal acted in a way that affected the exercise of power by making an error of law. The applicant at the hearing before me was unable to add any explanation as to what was meant by this complaint. He was not able to provide any particularity, nor was there any specificity to this claim. If this is a complaint about the conduct of the Tribunal, then no evidence whatsoever has been presented to the Court to support any such claim. Nor is any error of law apparent on the material before me. This complaint as put forward by the applicant cannot succeed.

10. The applicant's fifth complaint is that the Tribunal determined questions of law not in accordance with the law. As I have already said the Tribunal's decision turned on the credibility of the applicant's claims. The Tribunal made findings in this regard which were all open to it on the material before it and it gave reasons for this. This ground also cannot succeed.

11. In a context of having before me an unrepresented applicant (particularly one from a non-English speaking background), I looked at the issue as to whether that part of the Tribunal's “Findings and Reasons” dealing with the identity of the applicant at CB 86.8 to CB 87.7 contained any error as identified by the majority of the High Court majority decision in SAAPv Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24. In part, the Tribunal does make reference to information contained in the applicant's application for a protection visa, which on the authority of the Full Federal Court decision in Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679 is not information provided to the Tribunal for the purposes of the application before it and therefore would not fall within the exception contained in s.424A(3)(b) if there was a requirement for the Tribunal to put information to the applicant pursuant to s.424A(1). In SAAP the majority of the High Court held that a Tribunal will have fallen into jurisdictional error, once it's reasons are analysed, if information that must be put to the applicant is not put to the applicant in the way provided for in s.424A(2) of the Act.

12. The process by which a Court is to determine the Tribunal's reasons for affirming a decision under review for purposes of the application of s.424A(1), was discussed by Sackville J. in SZDQL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 769 and enunciated propositions relevant to this issue as established by the authorities (at [55]) that information considered in the context of the Tribunal's reasoning process and the aggregate of its findings as relatively minor and unimportant in the scheme of things is not likely to be a part of the reason for the decision, and that the useful test was:

    “… so integral to the reasoning process rejecting the [applicant's] claim as to require as a matter of fairness that the [applicant] be told that information cfs. 424A(1)(a)) and why it was relevant to the review cfs. 424A(1)(b): VAF, at [41]; VUAX, at [53]-[54].”

13. In the case before me, while the Tribunal's “Findings and Reasons” appear to spend some comparatively considerable time focusing on the issue of the identity of the applicant, it is very clear that in the context of the applicant's claims, as put by the applicant, the core of the applicant’s claim for protection revolves around his involvement with the Christian religion in China. The Tribunal's findings in this regard were clearly the integral part of the reasons for the Tribunal rejecting the applicant's application. In this regard, the Tribunal's findings in relation to the applicant’s involvement with the Christian religion, while involving the issue of the credibility of the applicant's claims, was not based on any issue arising out of the identity of the applicant. Further, the issue of the identity of the applicant was raised by the applicant himself at the hearing before the Tribunal (CB 82.4). The identity of the applicant was linked to the issue of the authenticity, or otherwise, of the applicant's passport. In this regard the Tribunal records that the delegate’s decision that the applicant did not have a well founded fear of persecution in China, was based in part on the view that he would not have been able to obtain a passport in his own name and leave China if he had been wanted by the authorities. The Tribunal clearly records at CB 87.5 that it was in his application for review to the Tribunal that the applicant himself identified this element of the delegate’s decision and purported to address it in the application to the Tribunal. It was the Tribunal's rejection of the applicant's explanation at the hearing before it for his failure to mention this issue before the first respondent's Department, which led the Tribunal to its conclusion that it was not satisfied that the claim of a false passport was credible and that the applicant's real name was that which appeared on his passport when he entered Australia. In this regard the issue, and the information on which the Tribunal relied, were put before the Tribunal by the applicant, firstly in writing in his application in the statement attached to his application to the Tribunal, and then at the hearing before the Tribunal. In this regard any such information would be caught within the exception contained in s.424A(3)(b) from the requirement to put to the applicant information pursuant to s.424A(1) in the manner required by s.424A(2).

14. The Tribunal clearly rejected the applicant's claims arising out of his involvement with the Christian religion in China for reasons which were open to it on the material available to it. The Tribunal considered all of the applicant's claims as presented by him and was not satisfied, for the reasons that it gave, that the applicant was a person to whom Australia owed protection obligations under the Refugees Convention. I cannot see any error let alone jurisdictional error in how the Tribunal has gone about its task or made its decision and accordingly this application is dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate:  Wagma Aziza

Date: 5 September 2005